June 14, 2017Client Alert

A Reminder That Conditional Use Permits Are Conditional

On May 31, 2017, the Wisconsin Supreme Court upheld a decision, reminding us of the limits of a conditional use permit application (CUP). 

Under zoning laws, certain uses of property are permitted, some uses are prohibited, and some uses are permissible only if the local zoning body makes a determination to issue a CUP. In AllEnergy Corporation v. Trempealeau County, (2017 WI 52), a property owner submitted a CUP application in order to use the property for a non-metallic mine, which was only allowed with a CUP. The county admitted that the property owner had submitted all of the documents and information required by the zoning code to make a complete CUP submittal, but the county denied the issuance of the CUP. The Wisconsin Supreme Court upheld the decision, saying that even if the landowner had submitted all of the documents needed for consideration, and the property had met any list of conditions the county had placed in the CUP, the county still had discretion to deny the CUP. 

A CUP can be a very valuable tool for municipalities and property owners to allow uses that might not otherwise be permitted. A careful list of conditions can be used to overcome objections, and to make that use more compatible with neighboring uses, such as by limiting sound, the spill of outdoor lights, outdoor storage, or hours of operation.  For a property owner, a list of acceptable conditions to a particular use is better than a blanket denial of that use, and allows property owners to make more use of their land.  This case is a reminder that even if the zoning staff puts together a list of conditions they think will work,  ultimately, the zoning body has the discretion to issue the CUP or not, to the extent of its authority, which makes careful negotiation of the CUP conditions important.

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